HomeMy WebLinkAboutmin brd of selectmen 01/16/02
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Board of Selectmen
Minutes of
January 16, 2002
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Present:
Chairman Louis P. Amoruso; Vice Chairman Bradford E. Wills; Clerk
Michael W. McCue; and Selectmen David W. McCarter and Daniel
Donovan
Town Manager John O. D'Agostino
The meeting was called to order at 7:30 p.m., followed by the Pledge of Allegiance
to the Flag.
. Warrant No. 30 in the amount of $10,036,350.46
Motion: To approve and sign
(McCarter-Donovan) 5-0 with Selectmen McCarter abstaining from
Municipal Building Committee payroll
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. Minutes of January 9, 2002 Board of Selectmen's meeting
Motion: To approve
(McCue-Donovan) 5-0 Passes
Tweeter Center entertainment license - approved last week; ready for
signatures
Motion: To sign
(Wills-McCue) 5-0 Passes
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Letter from Kathryn and Cory Fellows, homeowners in Fairfield Park, asking for
trash pickup or property tax credits for condo owners, who do not receive local
trash and recycling pick-up, as they are paying for these services twice.
The Town Manager will respond and added we wl1/ not be picking up at curbside,'
condo associations would have to purchase the dumpster and we would empty it.
Board of Selectmen Minutes of January 16. 2002
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Michael Healey, Vincent Cutone, and Gary Crowell were interviewed relative to their
applications for appointment to the Ad Hoc Committee to Monitor the Cable
License.
Michael Healey of 18 Casa Drive said he's been involved in cable access since 1994
in various roles. He's currently serving on the license review committee.
Gary Crowell, 14 Surrey Drive - called Town Hall as a very dissatisfied customer and
was convinced to volunteer for this board. He believes it should be a win-win
situation for the provider and the town.
Vincent Cutone, 446 Maple Street - is interested in cable regulations and is also a
dissatisfied customer of the current provider and wants to make a difference.
Motion: To establish the Ad Hoc Committee to Monitor the Cable License
comprised of six members.
(Donovan-McCarter) 5-0 Passes
r Motion: To approve all three applicants
(Wills-Donovan) 5-0 Passes
Selectman McCarter asked what kind of problems they've encountered with the
current cable provider. Mr. Crowell said he's had billing problems, and a two-month
wait for service between installation and activation of his cable modem, in addition
to various other situations he's been unhappy about. Mr. Cutone encountered the
same problem with the cable modem and also has experienced poor reception.
Steve MacCaffrie of Mill Street - faxed over a letter yesterday, which he read,
regarding the memorandum sent out regarding requests for information. Once
again, he reiterated his request for a retraction on three individuals (himself
included) being singled out in the memorandum. He also requested a response to a
letter faxed to the Selectmen on December 14th and an answer to his question of
last week concerning his water bill. Selectman McCarter agreed with his concern
about the information request e-mail, but noted the intent of the memorandum was
to provide an opportunity for the Town Manager and Selectmen to provide answers
r for questions asked publicly after the information has been requested and not to
Board of Selectmen Minutes of January 16, 2002
2
r single out three individuals for more stringent requirements in their access to
public information..
Motion: That the Town Manager send out a letter rescinding the three names and
that everyone be treated equally.
(Wills-McCarter)
The Town Manager said he would address the issue with the three individuals,
noting it's an administrative issue. Selectman McCarter stated it simply requires an
e-mail to all department heads noting it is not necessary for them to report to the
Town Manager any information requested by the three individuals. Mr. D'Agostino
noted the intent was to prepare the Board as best as possible for questions and
comments that are raised publicly by individuals requesting information.
Discussion continued regarding access to information by individuals and the
requirement that the requests for information by three individuals be forwarded to
the Town Manager. There was concern on the part of some selectmen as to being
specific as to how the matter is addressed and suggested the Town Manager
address the matter in writing and copy the Board of it. If it's not addressed to the
Board's satisfaction, it will be further considered.
Vote: 2-3 with McCarter and Wills in favor; Amoruso, McCue and Donovan
opposed. Fails
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Motion: To open the hearing
(Wills-Donovan) 5-0 Passes
The hearing opened at 8:08 p.m. on the alleged alcohol violations of Tahana
Restaurant. Attorneys Charles Mulcahy and Mark Bennett of Wynn & Wynn were
present to represent Peter Chan, owner of the Tahana Restaurant. Also present
was Investigator James Burke, who was hired by Wynn & Wynn. Town Counsel
Robert S. Mangiaratti prosecuted the case for the Town. Detective Michael
Ellsworth, Patrolman Thomas Whiting, and Detective Lawrence Crosman of the
Mansfield Police Department testified on behalf of the Town. Police Chief Arthur
M. O'Neill was also present to provide closing statements on behalf of his
department.
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Attorney Mangiaratti reviewed the allegations of serving alcoholic beverages to an
intoxicated person on October 23, 2001 and two instances of serving alcoholic
beverages to minor persons under the age of 21 on December 25, 2001. He
reminded the Board that the strict rules of evidence would apply under
Massachusetts General Laws.
Board of Selectmen Minutes of January 16, 2002
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Officer Whiting stated his name and occupation-- Thomas Whiting employed by the
Town of Mansfield for over eight years. He testified that on October 23, 2001 at
17:30 hours he made an arrest at the Tahana. He was working on the 4-12 shift in a
marked cruiser and was stopped at a traffic light. The driver of the vehicle pulled
up to the side of his vehicle and drove past him through a red light from North
Main Street onto South Main Street. He stopped the vehicle and noted the driver
appeared glassy-eyed and he noticed a strong odor of alcohol. He continued with
his report, noting the driver said he had one scorpion bowl and ate at the Tahana
Restaurant. Field sobriety tests were administered. The horizontal gaze
nystagmus test and various field sobriety tests, which were administered, were
explained and Officer Whiting testified the subject failed the various tests
administered, with the exception of the ABC's. The subject was placed into
custody and charged with operating under the influence of alcohol and operating to
endanger. The passenger stated the driver had three scorpion bowls and nothing to
eat at the T ahana.
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Attorney Mark Bennett asked Officer Whiting if he's aware that the Court does
not accept the nystagmus test. He asked if he noticed the subject was "burly".
Officer Whiting noted he used two pairs of handcuffs due to his size. Attorney
Bennett noted the subject arrested was 50 years old, 5'11" and 290 pounds. He
suggested there were seven field sobriety tests administered and at the conclusion
it was noted he was under the influence-but not that "he was intoxicated."
Attorney Bennett submitted a memorandum he prepared with an attached exhibit
discussing the nystagmus test.
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Attorney Mangiaratti called Detective Crosman to the stand. Lawrence Crosman
stated he's a detective with the Mansfield Police Department, employed for 9 î
years, and has been a detective for five years. On October 23, 2001, he was called
in his capacity as a detective. He was approached by Officer Whiting who advised
him of the arrest and that the subject had admitted to having three scorpion bowls
at the Tahana Restaurant. He contacted his supervisor, Detective Sgt. Robert
Martin, and was instructed to do a full investigation. He entered the cell after the
subject had been Mirandized and questioned the subject. The subject said he went
to the Tahana around 4 o'clock after leaving work at 3 p.m., said he sat at the bar
and was served three scorpion bowls by "Calvin", the owner's son. He stated he had
nothing to eat. Detective Crosman then went to the Tahana Restaurant and
approached the front counter area, speaking to Mrs. Chan. Calvin came up and
Detective Crosman advised him of the incident and showed him a large digital image
of the subject. Calvin said the person in the picture was served a scorpion bowl and
the gentleman with him didn't like it and passed it off to the subject and ordered a
mudslide. He said he served the subject a second bowl and stated they were there
Board of Selectmen Minutes of January 16, 2002
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only 15 minutes. Mrs. Chan noted it was longer, and Calvin then stated it was 15-30
minutes. When asked if he had finished the scorpion bowls, Calvin said he wasn't
sure. Detective Crosman then met up with Officer Whiting and went to the home
of the passenger and questioned him. He showed no signs of intoxication. Mr.
Thompson reviewed the events with the passenger, who stated they ordered a
scorpion bowl and he didn't like it and passed it off to his friend. He admitted to
having two mudslides and said the subject drank a total of three scorpion bowls.
Atty. Mangiaratti asked what a scorpion bowl is comprised of. Detective Crosman
noted going on internet sites where ingredients were listed, showing numerous
types liquors and the typical ingredients a scorpion bowl is comprised of. As a
result of the investigation he reached the conclusion that the licensee served
alcohol to an intoxicated party based on the time they arrived at the restaurant,
the time they left, and independent testimony of the two individuals.
Atty. Bennett cross-examined Detective Crosman, noting that each gentleman said
they were there at least one hour. Atty. Bennett questioned the timeframe, and
asked if they were in fact there an hour. He then reviewed Detective Crosman's
experience as a police officer and suggested it's unusual for seven field sobriety
tests to be administered. He further suggested there must have been some
r question in the officer's mind about the subject's sobriety if that number of tests
were necessary. Atty. Bennett then asked Detective Crosman about his visit to
Tahana and his noting that Mr. and Mrs. Chan, as well as their son Calvin and other
patrons were there, yet no patrons or others were questioned as to the events or
their observations of the situation. He asked why Detective Crosman did not ask
the bartender, Calvin, what the ingredients of the scorpion bowl consisted of.
Atty. Mangiaratti redirected, asking what the disposition of the case was. The
subject admitted to sufficient facts, and his license was suspended. He was put on
probation for one year and ordered to attend alcohol education classes. Atty.
Mangiaratti also noted Detective Crosman's report wherein the subject stated, "I
know I screwed up."
Atty. Bennett noted the crime under law is not driving while intoxicated, it's about
being under the influence of alcohol, and asked Detective Crosman if he's ever read
the law or heard jury instructions.
Chairman Amoruso asked if a breathalyzer test was administered. Atty.
Mangiaratti said it was refused. He also clarified Atty. Bennett's remarks
regarding jury instructions.
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Board of Selectmen Minutes of January 16, 2002
5
r Detective Michael Ellsworth stated he has been employed since October of 1993 by
the Mansfield Police Department. He was present at the time of the arrest
because he was at the intersection in plainclothes in an unmarked cruiser, carrying a
badge and gun. He was present for a couple of the field sobriety tests and, based
on his observations, he formed the opinion the subject was drunk. Atty. Bennett
questioned why Detective Ellsworth hadn't written a report and now, after sitting in
the audience and hearing all the testimony, is now stating publicly for the first time
that the subject was drunk. Detective Ellsworth stated the individual was getting
out of his automobile when he arrived at the scene. Atty. Bennett questioned
Detective Crosman further on his observations and suggested Detective Crosman
did not participate in the complete testing.
Selectman Donovan asked how the bartender could know he's under the influence if
the person's just come from work and is sitting there having a drink. Atty. Bennett
cited case law detailing obvious signs of intoxication, noting those signs were not
present in the patron while sitting at the bar. Atty. Mangiaratti disagreed about
the case law cited, noting to be charged with operating under the influence a person
does not have to be drunk or unconscious. He noted we're dealing with the statute
regarding serving an intoxicated person, which means it adversely affects your
ability to conduct yourself. The description of the suspect given by the officers
r was of physical characteristics that were indicative of his condition and the number
of scorpion bowls he had consumed. Knowing the composition of a scorpion bowl, it's
reasonable in the duty of the bartender to observe and know that the patron is
intoxicated. Atty. Bennett noted the arresting officers did not say the patron was
"drunk" nor did they ask questions of other patrons and get their testimony.
Selectman Wills asked what the law is on refusing to take a breathalyzer. Atty.
Bennett said it can't be used against a suspect and his decision to refuse it has no
bearing on the Tahana. He reviewed the sentence imposed for such an offense.
Atty. Mangiaratti noted the subject admitted to sufficient facts and took the
punishment administered. Selectman Wills asked Officer Whiting if the subject
drove right through the light-he did. Selectman McCarter reviewed the results of
the field sobriety tests with Officer Whiting and asked if he always administers
that many tests. Officer Whiting testified that he used that many tests to
eliminate the possibility that the subject's ability to perform some of them might
be due to his size.
Selectman Wills asked Officer Whiting approximately how many intoxication
arrests he's made-close to 100. Selectman Donovan asked if the subject
understands English-he did.
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Board of Selectmen Minutes of January 16, 2002
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The Board then reviewed procedural questions with Attorney Mangiaratti as to the
handling of the incidents of October 23rd and December 25th individually or
collectively.
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Peter Chan, owner of the Tahana, said he's run the Tahana for 16 years and his
entire family works there (his wife and son Calvin) and they work seven days a week.
He noted this business is his "baby". Upon the questioning of Selectman Wills, he
stated he holds a B.S. in chemistry from Boston University and spent one semester
at UNH in pre-med. His wife completed her B.S. in teaching, and Calvin majored in
sociology. His other son, who does not reside locally, is a chemical engineer.
Selectman Wills asked if the ingredients listed in the report are the ingredients he
uses in a scorpion bowl. Mr. Chan says he has his own recipe. Mr. Wills asked Mr.
Chan if he has problems with the Police Department and if the Chinese culture gets
nervous around the police. Selectman Wills asked if perhaps Calvin answered the
questioned too quickly because he was nervous. Mr. Chan said common sense tells us
that nobody drinks three scorpion bowls in fifteen minutes. He further noted he'd
be out of business if he served that much alcohol in a scorpion bowl. He pointed out
there's a lot of fruit juice in it. Mr. Chan stated he was not at the restaurant the
day of the incident. Mr. Donovan asked Mr. Chan if he's ever seen people drunk and
refused to serve them. Mr. Chan said it happens frequently during the warm
weather and he refuses to serve them, noting it happens during Tweeter Center
concerts. His scorpion bowls have three shots of liquor for one person.
Police Chief O'Neill clarified that both complaints are intended to be heard tonight
and gave a statement covering both of them. He noted if there is court
involvement, they don't bring the case to the licensing authority until the
defendant's case is adjudicated. If there are no criminal charges, there is little
delay. The gentleman admitted to the Court that there were sufficient facts of a
case against him if the case had gone to trial. It was then continued without a
finding and, if he completes the requirements, the case will be dismissed. Attorney
Mangiaratti noted the individual loses his license, pays costs and probation fees.
The Chief noted Mr. Chan's employees are TIPS-trained, and part of that training is
knowing the effect of alcohol on a person's body.
Attorney Bennett noted the incident occurred October 23, 2001 and was brought
to the attention of Lt. Figueredo on October 29th. Action was deferred until the
disposition of the criminal case and that occurred on November 29th yet was not
referred to the Board until December 27, 2001. Attorney Bennett asked why
there was a delay of a month in referring the case. The Chief did not have an
answer as to Lt. Figueredo's handling of the matter. Attorney Bennett stated his
r- position that operating under the influence and serving an intoxicated individual are
two separate things and the license holder should not be held liable for someone
Board of Selectmen Minutes of January 16, 2002
7
r operating under the influence. The law requires a tavern owner not to serve alcohol
to an intoxicated person, and nothing we've heard proves that the bartender should
have known the individual was intoxicated. The detective had every opportunity to
speak to the Chans and patrons of the restaurant as to the conduct of the subject
while he was at the restaurant. The fact that he was charged with driving under
the influence provides no evidence that he was visibly intoxicated while at the
restaurant.
Attorney Mangiaratti noted having an alcoholic beverage license is something the
Commonwealth has established regulations and controls over, and the holder of the
license has a responsibility to the public. It's the licensing authority's job to make
sure the license holder meets that responsibility to the public. He noted he could
produce a brief for the Board that would outline what it means to be intoxicated
and suggested it would be very different than one prepared by Attorney Bennett.
The statue is to protect the general public from unreasonable risk or harm. If
someone cannot drive his or her car safely, there is a risk to the public. There is
strong evidence that three drinks were consumed and those would have contained
nine shots of alcohol. The officers' testimony revealed problems with the field
sobriety tests and other evidence of intoxication. He suggested it's a violation of
the statute and it's the responsibility of the Board as the licensing authority to
(' protect the public.
Motion: To table a decision to allow for further study of the brief presented
(Donovan-McCue) 2-3 with McCarter, Wills and Amoruso opposed Fails
Motion: To make a decision at the conclusion of the presentation of both cases
(Wills-no second)
Motion: To act on this matter upon the close of the hearing following a short
recess
(Wills-McCarter)
An amendment was suggested by Clerk McCue and the motion and second were
withdrawn.
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Selectman McCarter suggested making a finding if there is a violation now, and
determining the fine following the conclusion of the determination regarding the
second violation. Attorney Mangiaratti suggested they hear all the evidence on
both matters, take a recess to read the information presented, then come back and
discuss the disposition of the matter. Selectman Donovan argued for postponing
the decision for a couple weeks.
Board of Selectmen Minutes of January 16, 2002
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Motion: To make a decision on both items, with a short recess during which the
information provided can be reviewed, at the conclusion of both presentations
(McCue-Wills)
Selectman McCarter noted his desire to continue and decide then what penalty to
impose, if any, at the conclusion of the two cases.
Vote: 3-2 with McCue and Wills opposed Passes
Motion: To close the first portion of the hearing at 9:50 p.m.
(McCarter-McCue) 5-0 Passes
Motion: To proceed to the second portion of the hearing
(McCarter-McCue) 5-0 Passes
The second portion of the hearing was then opened, with Attorney Mangiaratti
reviewing the allegations of December 25th
Officer Whiting testified that on December 25th he was returning to the station at
the conclusion of his shift when he was told there was an anonymous call regarding
the sale of alcohol to underage persons and the possible sale of drugs at the
Tahana. He went to the upstairs lounge area and there were two patrons. He
observed a female who stated there were approximately 20 people downstairs at
the Club T. Mr. Chan, who was seated, greeted him at the door on a stool
customarily used by the person checking id's. Officer Whiting stated he advised
him of the complaint received and told him he was going to take a look around. Mr.
Chan agreed to allow him to do so. Officer Whiting then observed a male putting a
beer bottle to his lips and, when he saw the officer, put it down. He id'd him and he
was 20 years old. He spoke of checking others and finding one female who was also
20. He took the two underage patrons outside and interviewed them separately.
They each stated they had drinks at Tahana and were not asked for ID's. They
were asked to come to the station the next day and write a report on the incident.
They agreed to do so and the reports were done. Officer Whiting read the
voluntary statement of both the male and female.
Attorney Bennett noted at no time did Officer Whiting witness them being served
the alcoholic beverages. Referring to the statement of the male subject, Attorney
Bennett asked if Officer Whiting told him what to write. Officer Whiting stated
he did not. Attorney Bennett further noted that the male subject's statement
does not say that Tahana "served" him alcoholic beverages, but that he "drank" the
beverages. Attorney Bennett further questioned the anonymity of the caller if it
was made to dispatch and why the identity of the caller was unknown. Attorney
Bennett also questioned why the subjects were not placed under arrest when a
Board of Selectmen Minutes of January 16, 2002
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misdemeanor was committed in his presence. He further questioned the fact that
the subjects may have had fraudulent identifications that allowed them to purchase
the beverages. He noted the fact that the report does not state that he searched
the subjects is an important omission. Officer Whiting stated he searched the
female's pocketbook, but that also is not indicated in the report. Although it was
determined they were breaking the law, they were not placed under arrest. The
female subject was given field sobriety tests because she stated she was going to
drive a vehicle. Attorney Bennett noted the limit for a breathalyzer run on an
underage person is a blood alcohol level of .02 and yet a breathalyzer test was not
given. Officer Whiting noted she was not under arrest; therefore he could not
administer a breathalyzer to determine that. Attorney Bennett asked Officer
Whiting if he asked Mr. Chan if they had checked their id's. He did not. Officer
Whiting testified that he did see Mr. Chan check the id of a person on the stage,
but that was after the incident. Attorney Bennett asked if Officer Whiting if he
told the subjects he would not charge them with a crime if they would come down
to the Police Station the next day and provide a written statement. He replied he
did. Attorney Bennett then asked Officer Whiting if he assisted them in writing
the statements by suggesting what the statements should contain. He asked if
they were asked to put in their statements that the Tahana served them alcoholic
beverages. Officer Whiting said he did not do that and his statement contains
what they told him.
Selectman Donovan questioned if the subject had a chance to dispose of a false id
while sitting on the stage. Officer Whiting said Officer Thompson was with the
subject and that could not have happened.
Selectman Wills questioned how someone would know they were underage and phone
the Police Station. Officer Whiting said they looked young, but he cannot assume
that it was someone from their group or even someone inside Tahana that called in
the complaint. He did not ask Mr. Chan if he'd checked their id's.
Selectman McCue asked if the downstairs is a 21 and over club. Officer Whiting
said he believes it is, and is also used for functions. At that time nobody under the
age of 21 should have been in there.
Attorney Bennett called James Burke, a retired special agent with U.S. Customs,
whom Wynn & Wynn hired. He noted his 30 years experience. Mr. Burke spoke of
speaking to the young man and young lady in question who were found to be
underage and drinking alcohol at Tahana on December 25th. He spoke to the young
man in Springfield on January 11th who stated he was with 15-20 friends who
decided to meet at Tahana between 9-10 p.m. They were asked to go downstairs to
the club. They did not order any food or alcohol upstairs. They went out of the
Board of Selectmen Minutes of January 16, 2002
10
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club and proceeded to the side entrance. When the door was opened for them,
they all entered at once. He went to an area away from the bar; most of the others
went directly to the bar. He observed the group at the bar placing their orders
and noted the bartender was checking id's. He was seated at the booth and a
friend brought a beer over to him. There was a second friend who bought him a
second drink. He estimated he was there about 45 minutes when the police arrived
and began checking id's. During that time there were 20-30 other patrons who
entered the area and Mr. Chan was seated at the door checking id's. The officers
asked him if he'd consumed alcohol and he said he had. They asked if he was 21 and
he said "no" and produced his identification showing he was 20 years of age.
Attorney Bennett asked if the statement was written by the subject and signed by
him. Mr. Burke said it was. Attorney Bennett provided Selectmen with a copy of
the statement.
Mr. Burke was then asked if the female subject provided a similar statement. He
first spoke to her on January 8th and was interviewed at her residence for
approximately 35 minutes. The young lady told Mr. Burke that she and a group of
her friends decided to go to the Tahana and 15-20 of them arrived about the same
time and were directed downstairs. They did not order food or drink upstairs.
They went downstairs and proceeded to the bar. Her friends were ordering drinks
and the bartender was checking id's. Mr. Chan was not at the door at the time they
entered. She was not id'd in the confusion and she was served an alcoholic beer.
The interview was interrupted because the subject is employed as a nanny and she
had to go pick up a young child. He left his name and number and said he would
contact her that night. He spoke to her at 7:30 that evening and she was still
working. He made another attempt to reach her by phone and went back to her
residence on January 14th, at which time she declined to speak with him further or
to provide him with a written statement.
Attorney Mangiaratti reiterated that the female subject said she ordered a beer
and her id was not checked. The male subject said he drank two beers that were
purchased by someone else, but his id was never checked. Selectman McCue asked
if the young man indicated how many beers the purchaser ordered at one time. He
did not indicate one way or another. Attorney Bennett asked Mr. Burke if the
friend who made the purchase was at least 21 years of age. Mr. Burke testified
that the male subject stated that to be the case.
Attorney Bennett offered a further document - a refusal of service report form _
dated December 25th, 2001, completed by Linda Herendon, which he introduced as
the vigilance shown by the employees of Tahana in reporting this incident in which a
patron was asked to leave. Officer Whiting was asked to look at the report and
determine if the individual described could be identified as the male subject in
Board of Selectmen Minutes of January 16, 2002
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question. Officer Whiting noted the description is of a very average male and
stated he could not make that determination.
Police Chief O'Neill addressed the Board. He noted an anonymous call was borne
out by an officer's firsthand observations. He noted in the first incident there was
only one bartender. It was not busy and there was opportunity for the bartender
to observe the patron. It was the operation of the motor vehicle that brought the
incident to Officer Whiting's attention. The Mansfield Police Department
endeavors to conduct its duties to assist businesses and protect the innocent.
They have presented irrefutable proof that the violations did occur and could have
been prevented. He noted it's very possible that the proactive work of his officers
might just have prevented tragedies from occurring. He asked if the Board wants
this community and the establishments they license to be known as the place to go
when you want to drink too much or obtain alcohol when underage.
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Selectman Wills questioned why we've never heard of an underage complaint from
the Tweeter Center. Chief O'Neill said if they received that information, it would
be handled in the same manner. He noted the owner of the premise is responsible
for who is given the alcohol. Tahana is aware of that fact, which is why they have a
doorman checking identifications. There is no evidence of a false identification.
Selectman McCarter noted this is the first case he recalls where someone is
arrested and brought before the Board for a violation against the place where they
were served their last drink. The Chief noted they did not go just on the subject's
word, but followed up with an investigation. Selectman McCarter suggested there
might be many more of these hearings. Attorney Mangiaratti noted that on March
21, 2001 this Board suspended Tahana's license for three days after someone was
arrested for driving under the influence. Selectman McCarter questioned why
there have been no investigations and hearings when individuals have been arrested
after leaving other establishments in town.
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Attorney Bennett called to the Board's attention to the unexplained delay of the
Police Department in bringing the first incident to the Board. He suggested that
one logical explanation is the Police Department itself recognized it was a weak case
standing by itself. He noted the Police had ample opportunity to investigate that
matter. With regard to the second incident, the statute punishes the licensee who
sells, delivers or furnishes alcohol to persons under age 21. There was no violation
with respect to the male subject because he was not served or delivered alcohol by
the Tahana. The statute recognizes the possibility of a patron doing so and
provides a punishment for the person who does so. Delivery means hand-to-hand
sale according to the statute, Mr. ~ennett suggested. The report does not say that
an employee of the Tahana served the male subject alcohol. Attorney Bennett
Board of Selectmen Minutes of January 16,2002
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r suggested statements given to the Police were done under implied duress, and even
at that the Police did not get the testimony they were looking for. There is the
appearance of a violation in the alcohol consumed by the young woman, yet she was
given the "blessing" of the police and allowed to drive home. Attorney Bennett
advised the Selectmen he had Mr. Burke present the testimony of the young woman
that she was served a beer because they have nothing to hide and are telling the
truth. He noted the young woman declined to provide a written statement. She
did, however, have opportunity to conceal an id on her person, because her person
was never searched. He noted it's the Police Department's obligation to carry the
ball and not Tahana's obligation to prove their innocence. If the young woman was
served a beer, it was not because of lack of diligence as there is good evidence that
Tahana checks id's at the door.
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Motion: To extend the meeting for 20 minutes beyond the 11:00 p.m. established
curfew
(McCue-Wills) 4-1 (Donovan) Passes
Attorney Mangiaratti noted this is not a criminal case, but rather a hearing by the
Board as the licensing authority that has been entrusted to supervise the conduct
of their licensees. He noted there is much speculation, but the issue is whether
the Board likes what happened at Tahana and if they want to do something about it.
The issue is not the definition of "delivery" or "furnish", but rather whether they
want to do something about it. The facts are a man was served three scorpion
bowls containing nine shots of alcohol in an hour's time and exhibited signs of the
alcohol affecting him and was later stopped for a motor vehicle violation. The
second incident was a young man who was given a beer, and that testimony is
believable. The question is whether the Board wants to allow that type of behavior
in their licensed establishments. The third incident is a young woman under the age
of 21 who was served a beer and her identification was not checked.
Motion: To close the hearing at 11:08 p.m.
(Wills-Donovan) 5-0 Passes
The Board recessed for 10 minutes and reconvened the hearing after Selectmen
had the opportunity to read the information presented during the hearing.
The meeting was called back to order at 11:13 p.m.
Motion: To find a violation occured on October 23, 2001, based upon the fact that
the licensee reasonably should have known they served an intoxicated person
because the subject was served at least nine shots of alcohol within an hour and
was subsequently arrested for operating under the influence of alcohol based on
the observation of the officer, plus field sobriety tests that the subject failed
Board of Selectmen Minutes of January 16, 2002
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when they were administered. The officer then formed an opinion that the ~ubject
was operating under the influence of alcohol. The subject was arrested and
admitted there were sufficient facts to find him guilty when the case came up in
Court.
(McCarter-Wills) 5-0 Passes
Selectman McCue noted that with the facts presented there is evidence on the
second offense that the young lady was served.
Motion: To suspend the license of Tahana Restaurant for fourteen days, seven for
each offense, at a time to be determined by the Board.
(Wills-McCarter)
Selectman McCarter noted this is not the first time the establishment has been
before us on alcohol violations. They were recently found in violation on a separate
offense and given a three-day suspension. He stated weeks are appropriate in this
instance, and suggested further violations would warrant months, if not license
revocation. He noted "the law is the law" and we don't want to have the reputation
of being the town to go to drink. He noted that because of some mitigating
circumstances, he's willing to second the motion.
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Motion: To continue the meeting to 11:30
(McCue-Wills) 5-0 Passes
Chairman Amoruso stated his belief that two weeks in not sufficient. The
employees are TIPS trained and to not realize the amount of alcohol being
consumed in that time period could end up in any condition other than intoxication is
not a valid argument. The fact that they were censured just nine months ago, he
believes, warrants a stiffer penalty. He suggested three weeks would be more
appropriate-one for the first offense and two for the second. He then passed the
gavel to Vice Chairman Wills and amended the motion as follows.
Motion: To amend the motion to three weeks
(Amoruso-McCue) 4-1 with Donovan opposed Passes
Motion as amended: To suspend the alcohol license of Tahana Restaurant for
three weeks: one for first offense and two for second
(Amoruso-McCue) 4-1 with Donovan opposed Passes
f""
It was suggested the date of suspension be determined after the five-day appeal
period. Attorney Mangiaratti noted the five-day appeal period runs from the time
of formal notice of the period and time of suspension. He suggested the licensee
confer, allowing for ten days minimum, and start suspension three weeks from now.
Board of Selectmen Minutes of January 16, 2002
14
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Motion: To suspend the alcohol license of Tahana Restaurant from midnight
February 3,2002 to midnight February 23, 2002.
(Wills-McCarter) 5-0 Passes
Motion: To adjourn at 11:30 p.m.
(McCue-Wills) 5-0 Passes
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Signature of Clerk
Board of Selectmen Minutes of January 16, 2002
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